Law Commons^™

Purging Foreseeability, Ricardo J. Bascuas

Vanderbilt Law Review

For those responsible for understanding tort doctrine, the concept of foreseeability is a scourge, and its role in negligence cases is a vexing, crisscrossed morass. Indeed, one torts professor teaches that foreseeability might as well be called "strawberry shortcake," having been bent, muddled, and co-opted to such a degree that it has lost any real meaning.

Foreseeability's role in the element of "duty" in negligence is especially problematic. Courts have long tied the existence of a duty- that is, whether an allegedly negligent defendant owed an obligation of care under the circumstances-to foreseeability. The more foreseeable the risk, the resulting …

Comparative Fault To The Limits, Ellen M. Bublick

Vanderbilt Law Review

Comparative-fault defenses rarely attract much public attention. However, a recent lawsuit highlighted the subject. In a suit filed against the archdiocese of Boston stemming from an ongoing sexual abuse scandal, Cardinal Bernard Law asserted that a boy who had been abused by a priest from the time that he was six years old to the time that he was thirteen years old was himself guilty of comparative fault. The defense became the subject of immediate public scrutiny. Commentators described the defense with adjectives ranging from "reprehensible," "appalling," and "not sensitive," to "legalese," "boilerplate," "standard," and even "necessary.'"

The Cardinal's defense, …

The Hand Formula In The Draft "Restatement (Third) Of Torts": Encompassing Fairness As Well As Efficiency Values, Kenneth W. Simons

Vanderbilt Law Review

The definition of negligence in the draft Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") employs a version of the Learned Hand formula. According to the chief Reporter, Professor Gary Schwartz, who is responsible for this draft, the Hand formula can accommodate both economic and fairness accounts of negligence law.

Is he correct? I will argue that he is, and that the Hand formula, suitably defined and explained, is indeed an appropriate general criterion for negligence. At the same time, however, the current Discussion Draft is deficient in some respects. It does not adequately allay the fears of …

The Trouble With Negligence, Kenneth S. Abraham

Vanderbilt Law Review

The concept of negligence dominates tort law. Most tort cases are about negligence. Much tort law scholarship over the past several decades has been about the meaning of negligence. The new draft Restatement (Third) of Torts: General Principles ("Discussion Draft") devotes the vast majority of its first volume to negligence. And the idea of negligence as a liability standard is highly attractive to both the courts and commentators.

All the attention that negligence receives is not surprising, given the unattractiveness of the alternatives. Imposing liability only when the injurer intended harm seems unduly limited, in that it absolves injurers of …

The Theory Of Tort Doctrine And The Restatement (Third) Of Torts, Keith N. Hylton

Vanderbilt Law Review

Though at times a source of controversy, the American Law Institute performs an enormous public service through its Restatement projects. One of the initial hurdles any such project confronts is whether it should aim to clarify and illuminate the law, or to push the law in a certain direction. I think the Restatement project is most productive when it aims to clarify and illuminate rather than guide or control the development of legal doctrine. Efforts to guide and control risk producing questionable interpretations of the aw, undermining the value of the Restatement in the long run. Fortunately, the Restatement of …

Cost-Benefit Analysis And The Negligence Standard, Stephen R. Perry

Vanderbilt Law Review

In his commentary on the proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft"), Stephen Gilles does an excellent job of analyzing the role of cost- benefit analysis in the characterization of reasonable care in previous restatements, and also of tracing the relationship between that characterization and contemporaneous scholarly work. This is a necessary prelude to any attempt to reformulate the content of the negligence standard in a Restatement (Third), and I think that Gilles' work will prove to be exceptionally helpful in that regard. Given the limited space I have available for my own comments, however, I …

On Determining Negligence: Hand Formula Balancing, The Reasonable Person Standard, And The Jury, Stephen G. Gilles

Vanderbilt Law Review

trial practice ensure that the operational meaning of negligence is largely determined by juries in particular cases, rather than by the doctrines stated in appellate decisions (and restated in Restatements of Torts). Even if these practices are misguided, it is clear that no Restatement could repudiate them without drastically departing from the American Law Institute's ("ALI") traditional position that Restatements are predominantly positive and only incrementally normative.

On the other hand, the conception of negligence articulated in the Restatement (First) of Torts ("Restatement (First)")--which was carried over virtually unchanged into the Restatement (Second) of Torts ("Restatement (Second)"), and hence has …

The Theory Of Enterprise Liability And Common Law Strict Liability, Gregory C. Keating

Vanderbilt Law Review

The fundamental claim that the Restatement (Third) of Torts: General Principles makes about strict liability is striking and bold. The Restatement (Third) claims that there are only special instances of strict liability. Negligence is a general legal principle, but strict liability is a set of particular doctrines. Curiously, however, the Restatement (Third) also takes the position that strict liability is a unified form of liability; it characterizes strict liability as liability for the characteristic risks of an activity.' So the Restatement (Third)'s claim that strict liability is a set of special cases seems to be a claim that strict liability …

Non-Utilitarian Negligence Norms And The Reasonable Person Standard, Steven Hetcher

Vanderbilt Law Review

Informal social norms play a crucial, albeit largely unheralded, role in negligence law. The reasonable person standard is an empty vessel that jurors fill with community norms. Jurors do this rather than performing cost-benefit analysis. The proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") misses both of these points. It dramatically overstates the role of utilitarian, cost-benefit analysis in the reasonable person standard, and it dramatically understates the role of non-utilitarian negligence norms in this standard. This Article will explore these twin failings of the Discussion Draft.

The negligence cause of action makes up the lion's share …

The Unexpected Persistence Of Negligence, 1980-2000, G. Edward White

Vanderbilt Law Review

In Tort Law in America: An Intellectual History, I made the general argument that the development of tort law in the nineteenth and twentieth centuries had been more influenced by ideas than previous scholars had suggested.' In making that argument I employed the terms "ideas" and "influence" at multiple levels of generality. The argument would perhaps have been better under- stood if I had more clearly particularized the specificity and generality of my claims about ideas as causal agents.

At the most specific level, I employed the term "ideas" to refer to particular doctrinal and policy proposals for tort law …

Rights, Wrongs, And Recourse In The Law Of Torts, Benjamin C. Zipursky

Vanderbilt Law Review

Cardozo's opinion in Palsgraf v. Long Island Railroad Co.' hinges on a stark assertion about rights and wrongs: A plaintiff has no right of action unless she can show "'a wrong' to herself; i.e., a violation of her own right." Cardozo himself made this principle the core of his analysis, yet scholars typically regard it as impenetrable, circular, vacuous, or, as Posner put it, "eloquent bluff." Small wonder, then, that readers typically turn to "reasonable foreseeability" as the essence of the case. Leading scholars treat Palsgraf as a proximate cause case, despite Cardozo's pronouncement that "W[the law of causation, remote …

Using Comparative Fault To Replace The All-Or-Nothing Lottery Imposed In Intentional Torts Suits In Which Both Plaintiff And Defendant Are At Fault, Gail D. Hollister

Vanderbilt Law Review

All or nothing. For years this idea of absolutes has been a hallmark of tort law despite the inequities it has caused. Plaintiffs must either win a total victory or suffer total defeat. In recent years courts and legislatures have begun to recognize the injustice of the all-or-nothing approach and to replace it with rules that permit partial recoveries that are more equitably tailored to the particular facts of each case.' The most dramatic example of this more equitable approach is the nearly universal rejection of contributory negligence in favor of comparative fault in negligence cases. Almost all jurisdictions, however, …

Exploring The Foreign Country Exception: Federal Tort Claims In Antarctica, David J. Bederman

Vanderbilt Journal of Transnational Law

On November 28, 1979, an Air New Zealand DC-10 aircraft carrying tourists bound for an expedition to Antarctica crashed into the side of Mount Erebus, the highest peak on the frozen continent. All aboard perished. Four years later, the families of some of the New Zealander skilled in the accident brought suit against the United States Government under the Federal Tort Claims Act (FTCA). They claimed that the negligence of the air traffic controllers at the United States scientific base at McMurdo Sound, Antarctica, was the proximate cause of the crash.

This Article considers numerous aspects of this litigation and …

Defining The Government's Duty Under The Federal Tort Claims Act, Thomas A. Varlan

Vanderbilt Law Review

This Recent Development traces the Supreme Court's development of the analogous private liability test and examines the recent cases applying this test. The Recent Development then analyzes the divergent approaches taken in these cases and attempts to determine when an actionable duty arises under the Act.

On Product "Design Defects" And Their Actionability, John W. Wade

Vanderbilt Law Review

This Article has tried to explain and discuss these developments, to evaluate them, to show their relationship to the general state of the law, and to make suggestions on how far they should affect its future development. At present, the question of "design defects" and the determination of when a product is actionable because of the nature of its design appears to be the most agitated and controversial question before the courts in the field of products liability. I hope that this Article can be of some help to the courts in seeking to develop the most suitable answer to …

Reconsidering Plaintiff's Fault In Product Liability Litigation: The Proposed Conscious Design Choice Exception, Vincent S. Walkowiak

Vanderbilt Law Review

The Uniform Comparative Fault Act, drafted by the National Conference of Commissioners on Uniform State Laws, was approved by the Commissioners in 1977. Dean John W. Wade was Chairman of the special committee that drafted the Act. The Act is a comparative-fault, rather than a comparative-negligence, act; it applies to all nonintentional torts, including products liability actions, whether they are based on negligence, breach of warranty,or strict tort liability. The Act seeks to address the problem of the relationship between the doctrines of comparative negligence and strict liability for products by permitting plaintiff's fault to effect a proportional reduction in …

Unmasking The Test For Design Defect: From Negligence [To Warranty] To Strict Liability To Negligence, Sheila L. Birnbaum

Vanderbilt Law Review

This Article will consider the problems engendered by imprecise judicial analysis of the notion of design defect. The central issues informing this investigation are as follows: (1) Can the notion of manufacturer fault or negligence be rationally eliminated in a design defect case? and (2) Should the term "unreasonably dangerous" be retained in the definition of defect in a design case, and if so, how should it be defined?

Comments On The Bremen V. Zapata Off-Shore Co., Journal Staff

Vanderbilt Journal of Transnational Law

The Bremen v. Zapata Off-Shore Co., by bringing domestic law more into harmony with international custom and comparative practice, represents a step in the development of uniformity in transnational law. For this reason the Journal invited the following comments. Professors Charles L. Black, Jr., Robert Leflar and Harold G. Maier explore various aspects of this highly significant case.

Limitations On Liability For Economic Loss Caused By Negligence: A Pragmatic Appraisal, Fleming James, Jr.

Vanderbilt Law Review

Even if liability for indirect economic consequences of negligence may in some cases be too broad and open-ended to be endured, care should be taken to see whether that is true in all types of situations; if it is not true, one must examine whether a rule may be fashioned to separate the wheat from the chaff. In this discussion it has been assumed that if the pragmatic consideration has any validity, it is in the field of indirect economic loss rather than that of physical damage. As one commentator put it, "only a limited amount of physical damage can …

Defective Products: Abnormal Use, Contributory Negligence, And Assumption Of Risk, Dix W. Noel

Vanderbilt Law Review

This article will attempt to analyze these three general kinds of conduct on the part of the plaintiff, giving attention to basic tort principles and to traditional distinctions. Special emphasis will be placed on the functions of court and jury in resolving questions posed by situations in which injury is caused both by a defective product and by the plaintiff's handling of that product. It will be shown that a court's choice of policy factors as a basis for strict liability may affect considerably its final decision.

Products Liability-Drugs And Cosmetics, Page Keeton

Vanderbilt Law Review

Much has been written by judges and scholars about abrogation of both the requirement of privity for recovery on warranty theories and the prerequisite of a finding of negligence for recovery on a tort theory against manufacturers and other sellers of all kinds of products.' As a consequence of this abrogation, the courts in some states have completed the change-over from a fault to a strict liability theory of recovery for harm resulting from unintended and latent dangerous conditions of products. Moreover, removal of initial restrictions limiting strict liability to users and consumers is proceeding apace, and the logical extension …

Judicial Creation Of Direct Actions Against Automobile Liability Insurers: Shingleton V. Bussey, Jason G. Reynolds

Vanderbilt Law Review

Elizabeth R. Bussey commenced a negligence action in a Florida state trial court against Frances R.B. Shingleton for damages sustained in an automobile mishap. The accident itself was a rather ordinary rear-end collision. Out of the ordinary, however, was the fact that the plaintiff joined as a party defendant Shingleton's liability insurer, Nationwide Mutual Insurance Company. The trial judge, following the insurance policy's non-joinder provisions' and the weight of authority in Florida and elsewhere, granted Nationwide's motion that it be dismissed as a party defendant. Plaintiff appealed this order to the Florida District Court of Appeal on the theory that, …

Trespassing Children: A Study In Expanding Liability, R. Neal Batson

Vanderbilt Law Review

When confronted with a case involving a child plaintiff, attorneys and the courts should recognize that the doctrine of attractive nuisance is only one of several theories on which the plaintiff may proceed against a landowner. The status of a plaintiff should first be determined. If the child is a trespasser, then either the constant trespasser theory, the known trespasser theory, or the doctrine of attractive nuisance may be applicable. It is possible, however, that the court may reject any one or all of these theories and decide the particular case under the general negligence principles of foreseeability of harm …

Landowner's Negligence Liability To Persons Entering As A Matter Of Right Or Under A Privilege Of Private Necessity, Donald W. Fish

Vanderbilt Law Review

In modem tort law, the liability of occupiers of land for their negligence depends in the first instance upon the status of the plaintiff upon the premises. This status generally determines the level of duty which the occupier owes him, and a vast body of case law has developed dealing with the many aspects of the question.Of the myriad classes of persons to whom some duty of care maybe owed by an occupier, perhaps those who enter the premises by virtue of a legal right, and irrespective of the consent of the occupier, present the most elusive problems in analysis. …

Torts -- 1964 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

As usual, the Tennessee appellate courts decided a considerable number of tort cases last year, covering a wide variety of problems.There were no striking new developments. In fact, the two decisions which were awaited by the profession with the greatest interest, Kyker v. General Motors Corporation' and Texas Tunneling Co. v. City of Chattanooga, tend to slow down some modem developments. In the Kyker case, it was indicated that manufacturers are not yet strictly liable in Tennessee, at least on warranty grounds, without privity of contract. In the Texas Tunneling case, a federal court undertaking to apply Tennessee law placed …

Agency -- 1964 Tennessee Survey, John S. Beasley

Vanderbilt Law Review

During the period covered by this Survey several cases have raised rather interesting points for consideration under the law of agency. On one occasion the Tennessee Supreme Court declined the opportunity of joining the ranks of the majority of states in moving toward a more modern rule on employer's liability with respect to an employee's child injured negligently by the employee. In this and other decisions, the courts have followed Tennessee precedent rather closely, with the result that there are few changes in the law of agency.

Torts -- 1964 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

As usual, the Tennessee appellate courts decided a considerable number of tort cases last year, covering a wide variety of problems.There were no striking new developments. In fact, the two decisions which were awaited by the profession with the greatest interest, Kyker v. General Motors Corporation' and Texas Tunneling Co. v. City of Chattanooga, tend to slow down some modem developments. In the Kyker case, it was indicated that manufacturers are not yet strictly liable in Tennessee, at least on warranty grounds, without privity of contract. In the Texas Tunneling case, a federal court undertaking to apply Tennessee law placed …

Legislation, Law Review Staff

Vanderbilt Law Review

Budget Planners--Regulation To Protect Debtors

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Criminal Law--Taxation of Court Costs

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Statute of Limitations--Professional Negligence--Foreign Objects Left in Patient's Body

Contracts -- 1963 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Both the one year provision and the sale of goods provision of the Statute of Frauds were construed in Anderson-Gregory Co. v. Lea.'Regarding the duration of the contract, the facts in the opinion are somewhat sparse... The court held that the contract did not come within this provision of the statute. If a contract could have been performed, under its terms, within a year from the time of its making, it is not within the Statute of Frauds, even though it is improbable that the contract would be performed within a year.

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The Tennessee Supreme Court case of Oman …

Procedure -- 1963 Tennessee Survey, William I. Harbison

Vanderbilt Law Review

In two important decisions rendered during the survey period the Tennessee Supreme Court considered some of the aspects of joinder of actions under present circuit court practice. In the first of these, Necessary v. Gibson,' plaintiff joined a count for personal injuries resulting from defendants' alleged negligence with a count seeking recovery in contract based upon alleged promises of defendants to pay plaintiff for her injuries and expenses arising out of the same accident.